Shale Law Weekly Review – July 1, 2019

GHG Emissions: Council on Environmental Quality Issues Proposed Draft Guidance to Assist Federal Agencies when Considering Greenhouse Gas Emissions
On June 26, 2019, the U.S. Council on Environmental Quality (CEQ) issued proposed draft guidance on how federal agencies should address greenhouse gas emissions in accordance with the National Environmental Policy Act (NEPA). The guidance titled, Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, is expected to replace previous guidance that was withdrawn in 2017. The purpose of the guidance is to ensure that major federal actions are in compliance with NEPA, which requires considering environmental impacts and consequences during the decision-making process. The draft guidance states “[a]gencies preparing NEPA analyses need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment.” CEQ is seeking public comments on the draft guidance until July 26, 2019.

Pipelines: U.S. Forest Service Petitions Supreme Court for Review of Atlantic Coast Pipeline Decision
On June 25, 2019, the U.S. Forest Service filed a petition with the U.S. Supreme Court for review of a U.S. Court of Appeals decision regarding the Atlantic Coast pipeline project (U.S. Forest Service v. Cowpasture River Preservation Ass’n). In its decision issued December 13, 2018, the Court of Appeals for the Fourth Circuit found that the U.S. Forest Service did not have the authority to issue a pipeline “right of way” to Atlantic Coast Pipeline, LLC, to cross the Appalachian Trail (Cowpasture River Preservation Ass’n v. U.S. Forest Service, No. 18-1144). In the petition to the Supreme Court, the Forest Service argues that “the Park Service is responsible for administering the Appalachian Trail as a footpath, while the Forest Service retains jurisdiction and authority over the lands within national forests traversed by the footpath.” The Atlantic Coast pipeline is expected to stretch 600 miles from West Virginia to North Carolina, and is scheduled to be fully operational by 2021.

Pipelines: Texas Court Ruling Allows Permian Highway Pipeline Project to Move Forward
On June 25, 2019, the Travis County District Court issued a letter with a ruling in favor of the Texas Railroad Commission (Commission) and Kinder Morgan Texas Pipeline, LLC, allowing the Permian Highway Pipeline project to move forward.  The original petition was filed in April 2019 by Hays County, the City of Kyle, and private landowners to address the use of eminent domain in obtaining land for pipeline projects (Sansom v. Texas Railroad Commission et al.,  2019 WL 1772866).  The plaintiffs alleged that the Commission implemented insufficient standards to allow gas utilities the right to exercise eminent domain. In addition, the plaintiffs argued that Kinder Morgan’s actions were unconstitutional by applying these eminent domain provisions. The court, however, dismissed the claims against the Commission, ruling that the Commission does not have the authority to grant eminent domain power to utility companies. The court also dismissed the claims against Kinder Morgan, holding that their actions did not “violate the separation of powers provision in the Texas Constitution.”  The Permian Highway Pipeline project consists of 430 miles of pipeline designed to carry 2.1 Bcf/d of natural gas from Waha, Texas to the U.S. Gulf Coast.

State Regulation: Pennsylvania Senate Passes Bill Amending Clean Streams Law
On June 26, 2019, the Pennsylvania Senate passed Bill 619, amending an Act known as the Clean Streams Law (P.L.1987, No.394). The amendment would alter definitions in the Act and change reporting provisions for spills or discharges. More specifically, the bill amends the definition of pollution to exclude accidental spills that do not violate “numeric water quality criteria.” In addition, operators would be required to report a discharge or spill only if it would violate water quality criteria, violate federal discharge limits, and if the operator does not have a permit for the discharge in question. The bill has moved to the Pennsylvania House of Representatives where it was referred to the Environmental Resources and Energy Committee on June 27, 2019.

Public Health: University of Toledo Studies Relationship Between Hydraulic Fracturing and Higher Indoor Radon Levels
On June 18, 2019 the University of Toledo issued a news release summarizing the findings in a study linking closer proximity of hydraulic fracturing operations to higher indoor radon levels. The EPA website explains that radon, “the second-leading cause of lung cancer,” is a naturally occurring radioactive gas that can only be detected through testing. According to the study, in Ohio, radon gas is found primarily in soil and shale. To conduct their analysis, the researchers used data from the Ohio Radon Information System, which records average household radon levels by zip code. The researchers applied multilevel modeling to compare the relationship between increased airborne radon levels and the proximity of hydraulic fracturing activities. In the news release, one of the project leads, Dr. Yanqing Xu, summarized the conclusion by stating, “The shorter the distance a home is from a fracking well, the higher the radon concentration. The larger the distance, the lower the radon concentration.” The study is titled, Impact of the Hydraulic Fracturing on Indoor Radon Concentrations in Ohio: A Multilevel Modeling Approach and can be found in the online journal, Frontiers in Public Health.

From the National Oil & Gas Law Experts:
Charles Sartain, The TCPA Revisions Are Good for (Not Only) the Oil Business, (June 28, 2019)
Jessica Wentz, New Draft Guidance On Climate Change And Nepa Reviews Unlikely To Significantly Affect Agency Practice Or Judicial Interpretation Of Nepa obligations, (June 24, 2019)

Pennsylvania Legislation:
HB 827: would allow compensation for landowners impacted by the natural gas moratorium within the Delaware River Basin (Removed from table – June 24, 2019)
SB790: would create a conventional oil and gas wells act with regulations specific to conventional drilling (Referred to Environmental Resources and Energy – June 21, 2019)
SB694: would allow well bores to cross multiple units provided the operator has the leasing rights to drill wells on the units (Reported as committed, First consideration – June 25, 2019)
SB619: would amend the Clean Streams Law to only require reporting to DEP if the unauthorized discharge could cause a violation of water quality or if it is reportable under federal requirements (Third consideration and final passage (Senate), Referred to Environmental Resources and Energy (House) – June 27, 2019)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive ShaleLaw HotLinks:
“Jordan Cove LNG backers claim high support from landowners for pipeline” – Oregon Live
“Frackers Go Electric as Negative Gas Prices Spur Switch” – Bloomberg
“South Africa Creating New Oil, Gas Policy to Bolster Growth” – Bloomberg
“Philadelphia refinery to close permanently after blast” – E&E News
“Marcellus Shale Coalition responds to request to halt fracking in Pa.” – Shale Gas Reporter
“Dirty Water Holds Biggest Promise for Pipeline Companies, Jefferies Says” – Yahoo Finance
“Pipeline opponents, spurned by the state, ask federal agency to stop work” – The Roanoke Times
“Are There Potential Downsides Of Going To 100 Percent Renewable Energy?” – Pacific Standard

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This week we published a new Shale Law in the Spotlight article: Shale Law in the Spotlight – West Virginia Supreme Court Rules that Owner of Severed Mineral Estate Cannot Use Surface Estate to Develop Minerals from Neighboring Properties

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Written by:
Sara Jenkins – Research Assistant
Jackie Schweichler – Staff Attorney